Evictions during pandemic are forced and unlawful

The impending end to the provincial moratorium on residential evictions of those with incomes affected by COVID-19 is coming on June 19, placing many tenants on the edge.  More broadly, all residential evictions during the pandemic are problematic as everyone needs a place to “stay home” as the government is so wont to remind Nova Scotians.  Any evictions at this time will be forced evictions, and violations of the right to housing under international law pursuant to the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR) and under domestic law under the Canadian Charter of Rights and Freedoms (Charter) and the National Housing Strategy Act.  The Nova Scotia government needs to halt all evictions, forgive unaffordable rental debts and ensure that any rental payments going forward are affordable.

In Nova Scotia, unaffordability of housing is a major barrier for the wellbeing of predominantly working class people.  In Halifax, the situation is terrible, with more than 21% of households in Halifax are paying a staggering 50% of their incomes on rent and utilities, while over 43% spend over 30% on rent and utilities.  Before the pandemic, the vacancy rates in Nova Scotia were approximately 1.4% and an even worse 1% in Halifax, with affordable housing at a miserable 0.5%.  With gutted incomes due to the economic impacts of COVID-19, the proportion of incomes going to rent has obviously increased substantially, with exact numbers unknown at present.

Why any evictions right now should be seen as forced evictions and illegal

International and domestic law works to make any evictions during the pandemic unlawful due to tenants having committed no fault in being unable to afford rent and also due to the health risk of being homeless during the pandemic and having no legal protection against such evictions.

For decades, Canada has been party to international law that has required it to progressively improve provision of affordable and adequate housing. Under ICESCR, all state parties including Canada:

undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.

Article 11 of the ICESCR contains the right to housing (my emphasis):

  1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Article 17 of the ICCPR states that, “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home.”

Both these above articles work to prohibit forced evictions, which are recognized as a violation of the right to housing.  In its General Comment No. 4, the UN Committee on Social, Economic and Cultural Rights, the Committee interpreted the right to housing to include security of tenure, which includes the prohibition against forced evictions:

…all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

In General Comment No. 7, which directly addresses forced evictions, the Committee defines forced evictions as, “permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.”

At paragraph 4 they state:

… the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non interference with privacy, family and home and the right to the peaceful enjoyment of possessions.

Paragraph 8 interprets section 17.1 of the ICCPR in light of the right to not be forcibly evicted:

… article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection. That provision recognizes, inter alia, the right to be protected against “arbitrary or unlawful interference” with one’s home.

Paragraph 16 states, “Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights.”

Canada has already been scrutinized for its lack of compliance with the right to housing.  In 2016, the Committee issued a rather scathing report to Canada, where it stated (my emphasis):

  1. The Committee urges the State party to develop and effectively implement a human-rights based national strategy on housing and ensure that all provincial and territorial housing strategies are aligned with the national strategy. In light of its general comments nos. 4 (1991) on the right to adequate housing, and 7 (1997) on forced evictions, the Committee recommends that the State party:

 (a) Progressively increase federal and provincial resources allocated to housing, and reinforce the housing subsidy within the social assistance benefit so as to be commensurate to living costs;

(b) Take effective measures to substantially increase the availability of social and affordable housing units;

(c) Regulate rental arrangements with a view to ensuring that tenants enjoy the right to affordable and decent housing and are not vulnerable to forced evictions and homelessness;

(d) Ensure that its legislation on forced evictions is compatible with international norms, particularly with respect to its obligation to ensure that no persons find themselves homeless or victims of other human rights violations due to evictions, and that compensation or alternative accommodation is provided to victims.

With the advent of Canada’s National Housing Strategy Act (NHSA), the right to housing was finally adopted into domestic law in a formal sense.  Following from international law and the adoption by Canada of the NHSA, the right to housing, including the right against forced evictions, must be considered part of a person’s section 7 Charter rights to, “life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Being evicted must be seen as a deprivation of security of the person, which the Supreme Court of Canada has held to be any government action that deprives a person of psychological integrity and puts their wellbeing at stake.  Section 7 of the Charter requires that there can be no deprivation of security of the person that is in discord with the principles of fundamental justice.  Those principles include that acts or omissions of government are not arbitrary or unreasonable.  The McNeil government has failed to provide tenants with adequate protection or redress through its omissions.

Once the suspension of COVID-19 related evictions ends on June 19, 2020, countless tenants will face eviction proceedings if they are unable to meet their rental debts.  Any such eviction proceedings will be forced evictions if the tenants do not wish to leave.  As noted above, international law requires that no one be rendered homeless due to evictions, and vulnerable to the violation of other human rights, which could include forced exposure to higher risk of infection of COVID-19.  As well, it requires that there is legal protection against forced eviction.  The Charter should be interpreted to do the same.  Countless tenants who are struggling to cover costs of living due to COVID-19 economic impacts are, or will be, short on rent though no fault of their own.  Businesses and other workplaces were forced to close or trim down due to orders under the Health Protection Act and Emergency Management Act.  Federal and provincial government benefits for people who have lost income have not gone far enough to cover the costs of rents that have failed to go down in conjunction with the economic pinch.  If someone is evicted for not being able to pay unaffordable rent, that has not adjusted whatsoever to the economic reality, this is entirely unreasonable.  Furthermore, regardless of whether the reason for the eviction is a COVID-19-related shortfall of rent, any homelessness caused during the pandemic will expose those cast out to higher risks of contracting or being vectors for spreading the virus, as they will have nowhere to isolate.  Housing was already unaffordable before the pandemic.  Now it is a major crisis that should be dealt with urgently.

COVID-19 Provincial and municipal park ban in Nova Scotia unjustifiably treads on liberty rights

Public parks are essential public spaces.  In ordinary times, they are places where people gather, play with kids, walk and play with dogs, play games with friends and strangers in the community, run, bike and express themselves.  They are crucial spaces for community cohesion.  But these are not ordinary times.  People cannot gather in groups of more than five, and cannot come closer than two metres to each other.  Some people are not allowed out at all due to self-isolation or quarantine orders.

Controlling COVID-19 requires strong measures to ensure public health and to flatten the curve on the spread of the virus.  No reasonable person is denying that. In Nova Scotia, any orders made by Chief Medical Officer Dr. Robert Strang, arising out of medical evidence, to limit the activities of individuals, businesses and other entities to prevent the virus from spreading should be followed and should be justifiable under the Canadian Charter of Rights and Freedoms (Charter).


We all need to keep a watchful eye on the over-reach of state power during times of emergency.  The public health emergency does not give the province justification to enact laws or make orders that go beyond what is legitimately required to control the spread of COVID-19, resulting in harsh impacts.  The order under the Health Protection Act (HPA), by Dr. Strang is what is legitimately required and any complementary orders by the province have to be consistent with it. Oversteps by the state lead to violations of our civil liberties.  

On March 22nd, the province made just such an overstep, issuing an order under the Emergency Management Act to prevent people from being in provincial and municipal parks, and examples of enforcement have shown the impacts have been harsh.  On the province’s webpage informing the public about government action on COVID-19, they state, “Provincial parks, beaches, and tourist attractions are closed. Provincial trails will remain open for exercise. Gathering limits and social distancing guidelines must be followed.”  On March 30, the province issued a Minister’s Directive under the Police Act, which stated, “police shall escalate their efforts from public education to enforcement, in accordance with officer discretion.” Specifically regarding the ban on public parks, the Order stated:

Police focus should be on the issuance of SOTs (summary offence tickets) for failing to comply with the Minister’s direction issued under Section 14 of the Emergency Management Act prohibiting all travel into provincial and municipal parks and beaches while closed during a state of emergency.

The ban on being in provincial or municipal parks in Nova Scotia goes beyond the requirements of Dr. Strang’s order, and is not otherwise justified by the federal Quarantine Act, any federal Order in Council or other emergency federal law or regulation put in place due to COVID-19.  The park ban is an unjustifiable infringement of liberty rights under section 7 of the Charter because it is overly broad. Enforcement powers include the power to arrest and fine a person $697.50, as well as tow vehicles found parked at provincial or municipal parks.

In order to understand the disconnect between public health measures to control the spread of COVID-19 and the authority to arrest anyone, even if alone in a park, it is important to start with the order by Dr. Robert Strang.

Dr. Strang’s order is dated March 26, 2020, and amended on April 2, 2020.  It was made under section 32 of the HPA, which provides the authority to the Chief Medical Officer (CMO) to make orders to regulate conduct of people and entities if the CMO has, “reasonable and probable grounds that … the requirements specified in the order are necessary in order to decrease or eliminate the risk to the public health presented by the communicable disease.”  The order requires self-isolation or quarantine for 14 days for people who enter Nova Scotia, have been in contact with someone who has been diagnosed with COVID-19, are diagnosed with COVID-19 or have been tested for COVID-19.  All persons who travelled outside Canada must do the same (which also arises from an order under the federal Quarantine Act).  All persons in Nova Scotia, with exceptions for hospital workers and other specific workers, are required to stay two metres apart from others and to keep gatherings to less than 5 people.  Schools, day care facilities and many businesses were also ordered closed in order to avoid the risks of spreading COVID-19.  There was nothing about parks in Dr. Strang’s order.

Based on Dr. Strang’s order, if social distancing is maintained by at least 2 metres; any group is less than 5 people; and, there is no one in a provincial or municipal park that is under a quarantine or self-isolation order, then there is no reasonable and probable risk of spreading COVD-19 by simply being in a provincial or municipal park. That is a logical deduction.  But the law requires more than just a logical deduction.  It is necessary to examine what courts have said about liberty or other applicable rights as they relate to entering or being in public parks.

What does the law say about the right to be in a park?

The right to be in a public park is protected by the right of all persons to liberty.  Liberty is a fundamental right, protected under section 7 of the Charter, which articulates the right to, “life, liberty and the security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”  State action cannot be overly broad, so as to catch people who are actually following Dr. Strang’s order or other government orders made to reduce the risk of spreading COVID-19.

The Supreme Court of Canada explained the analysis for an overbroad law in R v Bedford:

[112]   Overbreadth deals with a law that is so broad in scope that it includes some conduct that bears no relation to its purpose. In this sense, the law is arbitrary in part.  At its core, overbreadth addresses the situation where there is no rational connection between the purposes of the law and some, but not all, of its impacts. …

[113]   Overbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others.  Despite this recognition of the scope of the law as a whole, the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.  For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual. Enforcement practicality may be a justification for an overbroad law, to be analyzed under s. 1 of the Charter.

Section 1 of the Charter only allows the state to impose reasonable limits on any rights and freedoms.  The limit must only be what is minimally required for the state action, as held by the Supreme Court of Canada: R v Oakes.

The right to liberty has been an important issue for access to public parks. The law protects even the rights of people convicted of serious offences to be in public parks, allowing only reasonable limits.  In R v Heywood, the Supreme Court of Canada (SCC) ruled on whether a total ban on entering any park at any time violated the liberty of a man convicted of sexual assault of children.  They ruled that the all-out ban was overly broad because it prevented the person from going into any park, regardless of whether there were children present, therefore went beyond control of the offending behaviour (See Heywood pp. 794 – 795 in PDF).  Regarding access to public parks, the SCC majority commented, “Parks are places which are specifically designed to foster relaxation, indolent contemplation and strolling; in fact it may be assumed that “hanging around” and “idling” is encouraged in parks.” (See Heywood, p. 795).

So, even someone convicted of sexual assault of children was allowed in some public parks as long as they were not areas that were frequented by children.  Should Nova Scotians without such convictions, who venture alone into Nova Scotia parks and are following all other conditions of Dr. Strang’s order, be more restricted than those convicted of sexually assaulting children?

The right to be in public parks came up again at the British Columbia Court of Appeal (BCCA) in a case involving homeless people tenting overnight in parks.  In Victoria (City) v Adams, the BCCA ruled that a city bylaw that prevented homeless people from sleeping in tents in a public park overnight was overly broad, therefore unjustifiably breaching the liberty of homeless people.  They described the liberty issue as follows:

[104] … The trial judge summarized her conclusion on the deprivation of liberty (at para. 148):

The majority of homeless people in Victoria have no choice but to sleep on public property. There is no other place for them to go. I agree with the submission of the [respondents] that creating shelter to protect oneself from the elements is a matter critical to an individual’s dignity and independence. The state’s intrusion in this process interferes with the individuals’ choice to protect themselves and is a deprivation of liberty within the scope of s. 7.

They concluded why the bylaw was overly broad:

[116] … The prohibition on shelter contained in the Bylaws is overbroad because it is in effect at all times, in all public places in the City. There are a number of less restrictive alternatives that would further the City’s concerns regarding the preservation of urban parks. The City could require the overhead protection to be taken down every morning, as well as prohibit sleeping in sensitive park regions.

Victoria (City) is an important ruling on the range of liberty in public parks.  It emphasizes the importance of protecting the right to access and use of these public spaces for activities that are fundamental to our well-being.  In this case, it was the right of homeless people with nowhere else to stay to cover themselves with overhead protection while sleeping overnight.  Perhaps even more important is the larger meaning of such a ruling.  That is, there can only be minimal restrictions on liberty in public parks, and these restrictions must be targeted only to serve other, legitimate public interest functions.

In another BC case, City of Surrey v Lewis, the provincial court of BC decided that a person did not have the liberty to simply be in a park overnight, after the park was closed, because this was a reasonable limit, to avoid the need for the city to have to service the park overnight.  This limit was not considered overly broad.  The court was still required to consider the issue because the right to liberty was raised, and it applies to public parks.

The noted cases provide guidance on how liberty rights apply to public parks, as well as how to measure whether a law is overly broad, which is addressed in Bedford. The SCC cases of Bedford and Heywood are binding on all of Canada.  Overall, the cases noted above make a few points clear.

  • People do have the right to enjoy public parks, as they are places where people engage in activities that support their well-being;

  • Governments cannot limit access to parks unless the limit is justified under a precise, lawful authority that is not overbroad;

  • It is okay for governments to limit the use of parks to only those times that they can be serviced, which excludes overnight use for non-campground parks

It should also be remembered that in Bedford, enforcement practicality is a possible basis for justifying an otherwise overly broad law.  Enforcement practicality was never actually analyzed in Bedford, but it can easily be surmised as what is reasonably necessary for enforcement to even be functional.

Why the ban on entering parks in NS likely violates the Charter  

Recounting the analysis of overbreadth in Bedford quoted above:

… the focus remains on the individual and whether the effect on the individual is rationally connected to the law’s purpose.  For example, where a law is drawn broadly and targets some conduct that bears no relation to its purpose in order to make enforcement more practical, there is still no connection between the purpose of the law and its effect on the specific individual.

Even though the ban arose out of a Minister’s Directive rather than Dr, Strang’s order under the HPA, the whole point of the Directive is to support Dr. Strang’s order.  Again, Dr. Strang’s order is based on, “reasonable and probable grounds that … the requirements specified in the order are necessary in order to decrease or eliminate the risk to the public health presented by the communicable disease.”  Dr. Strang did not see it as necessary to add a ban on entry to public parks to his order.   Under the current NS ban on entering provincial and municipal parks, people are being denied entry to all areas except certain approved walking trails in provincial parks or trails through other parks that are used for crossing them on the way to work or other destinations. No playing. No staying. The ban applies during the day. It applies to individuals and groups of 5 or less people, even if they are physically distancing by at least 6 feet. As an example of how the park ban has gone well beyond the limitations set by Dr. Strang or any other measures rationally connected to limiting the spread of COVID-19, on March 29th, a woman was arrested at Point Pleasant Park in Halifax for a violation of the park ban. She was alone with her dog.  Her car was also seized.  There are likely many more examples. On April 6, it was reported that 39 tickets had been issued on the weekend of Saturday, April 4th and that most were due to being in prohibited areas under the Emergency Act, which likely refers to being in public parks.   Police tape has also been placed outside of a number of public parks, with tape going up in areas of the Halifax Commons as of April 6th.

Banning entry to provincial and municipal parks is not necessary as a means of enforcement practicality.  There is nothing stopping police from simply enforcing the same limitations set out by Dr. Strang that apply to other non-residential locations to provincial and municipal parks. There is no way to know if an individual simply entering a park is going there to meet five or more people and stand within 6 feet of them.  If police see people entering parks in groups of five or more, they can be stopped.  If police see people refusing to physically distance themselves on their way into a park or in a park, they can be stopped. Additionally, police in Nova Scotia were only pressed to take stronger enforcement action since March 27th. The province initially allowed for a more voluntary approach to compliance with Dr, Strang’s order and the park ban.  There is no clear evidence that there was ever an issue with enforcement practicality before the park ban.

The already over-extended powers are being abused, giving indication that the police have been given too much leeway through the park ban. The Nova Scotia Advocate reported that on April 2nd a woman was stopped by police at Clayton Park on a walking trail and questioned about whether she lived in the neighbourhood.  There is no order in effect that requires a person to stay in their own neighbourhood. This was unquestionably a street check, which is a police stop where there are no reasonable grounds for the stop, and where police are merely fishing for information. No one has to provide any identification, submit to any search or answer questions during these stops and police have no authority to detain a person under these circumstances.  In 2019, an extensive report was prepared for the NS Human Rights Commission by Dr. Scot Wortley of the University of Toronto’s Centre for Criminology & Socio-legal Studies, making a number of recommendations, including for police to respect a person’s rights by informing them that they do not need to co-operate with police information-gathering in a street check.  As the Nova Scotia Advocate article warned, people have reason to be concerned  that police have been given too much latitude and that it will predominantly affect racialized people who live in poor neighbourhoods. 

And what about mental health?

It is important to also keep in mind how crucial it is that people have the means to take care of mental health.  The federal government has acknowledged the stress people are under due to COVID-19 containment measures.  On their webpage on Mental Health and Coping during COVID-19, they note the importance of regular exercise and walks, as well as to, “make opportunities for children to play and relax.” Not everyone has a backyard, making access to parks for them even more important for them, as a place to get outside and further away from urban noise.  There have been reported concerns about a mental health crisis as a result of the anxieties and isolation due to COVID-19.

In conclusion

Denying people the right to enter parks, even if they are physically distancing and following the other conditions of Dr. Strang’s orders tightens the vice grip on many who are already feeling squeezed.  Even in times of emergency, we should not assume that every measure taken by governments is necessarily in our best interest and for our safety. We should educate ourselves and be vigilant about the possibility of emergency circumstances giving the state the opportunity to overcompensate and thereby limit the rights of people, further restricting access to spaces that are necessary for our well-being.  The ones who will predominantly suffer under the enforcement regime are poor and working class people, and among them, predominantly Black and other racialized people who have historically been targeted to a disproportionate level. 

Furthermore, we should consider how important access to public spaces will be when the pandemic is over.  People will need to gather in order to assert the interests of working class and marginalized people who were the most severely impacted by the pandemic.  If we give the state more leeway to restrict our rights now, that power advantage can be used in the face of opposition the state may face down the road.

Asaf Rashid is currently on leave from practice and living in Halifax.

Suspended evictions and income supports fail to address vulnerability of working people

Before COVID, there was already an affordable housing crisis, poor wages relative to the costs of living and multitudes of working people with no savings and a single paycheque or less from living on the streets.  Government supports during the pandemic fall far short and without action, there will be major crisis of housing insecurity and homelessness. Housing is not currently a right protected under any provincial or national law, including the Canadian Charter of Rights and Freedoms.  What the present crisis demonstrates is the necessity of making housing affordable and accessible to everyone.

There have been suspensions of evictions in provinces including Ontario, Quebec and Nova Scotia; expansion of EI Sickness benefits to cover those who have had to stay home due to quarantine or self isolation; Emergency Care benefits for those who don’t qualify for EI Sickness benefits, but are sick or quarantined; and, Emergency Support benefits for those who are not eligible for EI, but face unemployment.   Overall, the government of Canada rolled out a $27 billion dollar aid package for businesses and workers and $55 billion in tax deferrals.  And Canada’s major banks are allowing a mortgage deferral payment for up to six months.  These are all band-aids on a broken system.

Before COVID hit, there was a substantial gap between incomes and affordability of housing and the costs of living in general, and despite numerous and recent calls for change, nothing has improved.  It is important to note that as soon as workers have been unable to work due to COVID layoffs and reductions of work, there has been an immediate pinch.  Working class people, by and large, have little to no savings.  Many are still fighting for a mere $15-dollar minimum wage. One paycheque away from the abyss is the reality now facing so many.

As for the COVID-related protections against evictions, they go by province, and don’t go that far.  In Nova Scotia, the suspension of evictions is only for those whose incomes have been affected by COVID.  But there is no indication that these tenants will be excused from the rental debt accumulated over the course of the pandemic.  There is no freeze on rental payments.  The Nova Scotia government has not suspended non-COVID-related evictions, even though evictions for anyone will likely expose those individuals to great risk — they will either become homeless and possibly take up residence in shelters, begin couch surfing or will be exposed in the course of moving.

What of the federal government’s income supports? The EI sickness benefits require that one has worked 600 or more hours and is actually forced to self isolate or quarantine due to illness or suspected illness.  Temporary foreign workers are left out regardless, which is its own major issue.  Even though no medical certificate is required for the sickness benefits in COVID cases, there has to be a demonstrated risk of illness that lands a person into isolation or quarantine, if not sick and in the hospital.  Even with 15 weeks of EI benefits, the recipient only draws 55% of their income to a maximum of $573 per week.  Low wage workers will be far below that amount.

As for those who don’t qualify for EI, but otherwise meet the sickness requirements noted above, the Emergency Care benefit only provides a maximum of $900 biweekly for up to 15 weeks.  Workers who have lost their job due to COVID’s impact will have access to Emergency Support benefits, which is currently an unknown amount, and expected to roll out in April.  However, it is unreasonable to expect it to be anything more than EI Sickness or Emergency Care benefits.  Looking at all the measures that have been put in place, precarious, relatively lower-waged workers before the pandemic will still not have the cash flow needed to meet the costs of living.

When you add the reduction in income due to COVID to a lack of any government-enforced rent reductions or rent payment freezes, you end up with a deluge of evictions, eventually.  The rental debts that will exist after the COVID crisis subsides will leave many struggling to survive and stay housed due to the inadequacy of government actions.

The present situation in Nova Scotia, mirroring that across the country, is one in which working class people with no savings, who largely rent are now paying the price for a lack of rent control, affordable housing crisis and general lack of any effective regulation to keep housing accessible and available to all.  The Canada Mortgage and Housing Corporation states that housing is only affordable if it costs less than 30% of the before tax household income.  That is far from the reality for many workers. Currently the vacancy rates in Nova Scotia are approximately 1.4% and an even worse 1% in Halifax, with affordable housing at a miserable 0.5%.  Many people currently housed are struggling with rent affordability and possible homelessness as prices are raised, with a recent story about a woman in Sackville as one example.

Excessive and increasing rental prices and a lack of affordable and available housing was a crisis before anyone breathed a word about COVID. They are urgent issues to address now because in a few months, increased precariousness in the fallout will make matters worse.

The law as it currently exists will not go very far to protect tenants.  There has to be changes.  The calls for action have been repeated many times: affordable housing, rent freezes, rent control and even rent reductions.  Governments over the years have ignored every call for action, and the situation has only gotten worse.  Housing is not yet recognized as a right, so homelessness and housing precarity is considered legally acceptable to all levels of government.

Tenant organizing is really the only solution to winning necessary changes in the law to better protect tenants.  Tenants in Toronto’s community of Parkdale, through Parkdale Organize, are organizing for their members to keep their rent during the pandemic: “Tenants keep your rent. Landlords keep your distance.”  They acknowledge that it is against the rules to withhold rent, but despite that, they push forward out of necessity, especially during the pandemic.  It will be interesting to see how the issue of necessity may be dealt with when the time comes:

There is strength in numbers. Thousands of us deciding to keep our rent gives us the resources to better provide for the health and well-being of our families and communities. Social distancing helps stop the spread of COVID-19. It doesn’t stop us from taking the collective action of keeping our rent.

This organizing is happening even with social distancing.  It is one example among many of working people organizing to protect each other in the days to come.

Racial Profiling at Walmart: the case of Santina Rao

On the morning of February 19, 2020, Santina Rao will be in the Halifax provincial court for charges arising out of her arrest at Walmart on January 15, 2020, which many – including me – see as the result of racial profiling.  The proceedings continue despite public pressure on the Crown to drop the charges, including a petition signed by approximately 6,000 at last count.

What happened to Rao case raises a number of issues, including human rights, culpability of the police and Walmart and the public interest in withdrawing charges that stem from racial profiling.


What happened?

The incident happened on January 15, 2020, when Santina Rao, a Black single mother with two young children, was shopping at Walmart at the Halifax Shopping Centre when she was wrongly accused of shoplifting, and violently arrested by Halifax Regional Police.  She was left with a black eye, a broken wrist, concussion and trauma from the incident.  In the end, she was NOT arrested for shoplifting, but for causing a disturbance, assault causing bodily harm to an officer, and resisting arrest.  Interestingly, the charges were not sworn until January 30, two weeks later.

A good description of the events can be found in a story about the events in the Halifax Examiner, by El Jones

Rao was shopping with her two young children, age 3 and 15 months. She paid for $90 worth of items in the electronics department. The cashier told her she couldn’t pay for her produce in that department because it had to be weighed. On her way to the checkout, she placed the bag with her items on her stroller, and stopped in the toy aisle to buy her daughter a Barbie. She planned to pay for her purchases at the check-out before she left the store.

In the toy aisle, in front of her young children Rao was approached by three floor walkers and two police officers and accused of stealing items and concealing them. She says she offered them to search her bags and even the stroller.

Instead, the officers continued accusing her of theft. When she became stressed and agitated in response to their questions, they attempted to arrest her for causing a disturbance and called for backup. Rao was accused of causing a disturbance because she became angry and protested being accused of being a thief.

In the end, Rao said six cops were surrounding her.


Rao suffers from trauma from experiencing violence in her life, and she says that she let the officers know that she has PTSD. When the officers began grabbing her with her children watching, she explains she reacted out of terror. She alleges that as she became upset with her treatment by police and protested her innocence, she was told she was making herself look “worthless” in front of her daughter.

One officer tried to grab her child and pull her away. When Rao tried to protect her daughter, she says the police escalated the violence against her.


The rest of the story by El Jones covers much of the other context and details of how events unfolded.

On Friday January 17, there was a late afternoon rally to support Rao.  The dozens in attendance called out Walmart for racial profiling, called out the police for the same reasons and for police brutality and demanded police to drop the charges against her.

Public pressure and attention led to the province’s Serious Incident Response Team (SIRT), a police watchdog, to investigate the incident, which they decided to do on January 21.  SIRT can be brought into play in cases where there is evidence that police actions crossed a line.  Investigations could lead to charges against the police, though such a result is extremely rare due to the latitude the police have with use of violence.

Rao has also been banned by Walmart Canada from every store in the country.


Human Rights and racial profiling

Under human rights law, businesses in Canada are prohibited from refusing to sell to someone on discriminatory grounds. If customers are forced to leave for discriminatory grounds, thereby being humiliated and unwelcomed, it is also a human rights violation.  In 2013, the Nova Scotia Human Rights Commission held that the Halifax Alehouse discriminated against a Black customer who was forced to leave then arrested outside the Halifax Alehouse.  They awarded damages of approximately $7,000 in damages to him.

In Rao’s case, there are a lot of parallels.  Add to her case that she is also banned from every Walmart in Canada.

But while racial discrimination by retail businesses like Walmart is illegal, they still do it.

Racial profiling and ensuing police brutality experiences like those of Rao are common because they are very much integrated into a system of loss prevention.  It is already established that Walmart practices racial profiling as evidenced by locking hair products for Black women as a loss prevention strategy, which is them targeting their resources for loss prevention to aim at Black people, which has come under controversy and resulted in a lawsuit against Walmart in California.  The same profiling plays out in instructions provided to security guards / loss prevention officers.  Security guards are trained to keep an eye on people with such descriptions who they are taught are suspicious, which is racially biased.  In 2016, CBC’s Marketplace did an investigation on racial profiling by security guards in Canadian retail, Shopping While Black, and discovered that racial profiling does take place.  Marketplace shoppers dressed and acted the same way in test stores, with the only differences being the colour of skin or ethnic background.  Black and Indigenous people were intently watched more so than people of a white complexion.  In one case, a store even had codes for various people of colour used to plan their surveillance, which was heightened for people of colour.

The consequences of the heightened surveillance and the biases that come with it are spectacular and violent takedowns such as in the case of Rao.  It is safe to say that very few cases of racial profiling will make the news due to the difficulty many would have in putting themselves in a spotlight.  But there have been other incidents of racial profiling at Walmart that made the news, such as in a 2017 case in Calgary


The case against Rao’s charges

Despite all the racial biases that led to Rao’s violent arrest and ensuing trauma, the law appears to be on her side due to how the events played out.  The most important key to her favourable legal position is that the police did not end up charging her for shoplifting, but then still proceeded to charge her for causing a disturbance, assault causing bodily harm to an officer, and resisting arrest.  They really did not have a basis for the shoplifting charge.  She had not left the store or passed through any checkouts when she was arrested, but remained at all relevant times in the main body of the store where merchandise is located.  The officers were initially suggesting that she was attempting to conceal or had concealed produce on her stroller, which was an attempt to show intent to commit theft.  As someone who has experience with criminal defence, I can say that there was never any reasonable basis for the shoplifting charge.  As El Jones points out in her Examiner article, Rao was even told by the cashier at electronics to go to a produce cash to have her items weighed when she attempted to pay for all items at electronics.  There was never an issue about having her items in the stroller at that point.  Nothing was concealed.  Her stroller was her shopping cart.  But she never had the opportunity to purchase her produce because the police violently arrested her before she got to the other cash checkout.  Even her attempts to show the police the produce on her stroller, and how she was not concealing anything did not cause the police to stop their investigation.

It was incumbent on the police to not simply follow the request of the Walmart security guard to arrest Rao, but to actually investigate the allegations in order to comply with their own standards for a police investigation.  They are required to make observations on the scene.  They are not supposed to ignore relevant information available to them, including if the person they are arresting is providing them with a counter explanation.  They could have applied basic reason to see that she was not attempting to hide anything, as she was explaining to them.  They also could have spoken to the initial cashier at electronics who did not raise any alarm.  They did not follow a course of reasonable investigation, but moved quickly to detain — by the mere presence of several police and security around her – then arrest Rao, with officers also trying to separate her from her kids, putting her under even more distress.

The police may have opened themselves up to a future lawsuit for negligence, breaches under the Canadian Charter of Rights and Freedoms and possibly punitive damages due to the racial profiling.



Since the shoplifting charge is gone, the police are left with an unlawful arrest.  By law, a person is allowed to resist an unlawful arrest by using reasonable force in the circumstances.  The number of officers, the size difference between Rao and the officers, the context of her being separated from her children by police as they arrested her and any previous trauma (previous abuse by police or similar encounters) that the incident triggered are all relevant to what was reasonable in the circumstances.  Here is an example of a judge in Alberta ruling that a lady who was unlawfully arrested was justified in biting an officer because it was reasonable in the circumstances:

R.v. J.D.C., 2009 ABPC 346:

[60]           Since Ms.C. was not lawfully arrested, she cannot be found guilty of assaulting a peace officer if the force she exercised was reasonable.  Was biting Officer Bennett reasonable under all the circumstances?  Ms.C. was arrested at approximately 7:15 p.m. and shortly thereafter transported to the Grande Prairie RCMP detachment.  She arrived at the detachment at approximately 7:35 p.m. and was placed in cells at approximately 7:45 p.m..  Officer Cote had attempted to use soft hand techniques on her to restrain her on two occasions and had partially pepper sprayed her on a third.  She had not been cautioned or Chartered.  Ms.C. had indicated to the officers that she would hit them if they touched her.  She said this at least once to Officer Cote and although Officer Cote did attempt a soft hand technique on her, Ms.C. restrained herself and did not hit her.  She also said it to Officer Bennett and again, although he did touch her, she did not hit him.  What she did do was bite him on the hand during the course of a struggle where she was taken to the floor by two officers and restrained by a third and while she lay on her stomach with the three officers holding or on top of her.

That is just one example which covers both resist and assault of a police officer.  As for the causing a disturbance charge, if Rao is found to be within the confines of reasonable force in her actions during her arrest, it should not be possible to find her guilty of causing a disturbance, which is described in the Criminal Code as “fighting, screaming, shouting, swearing, singing or using insulting or obscene language.” It would be a contradiction to find her guilty of causing a disturbance if her actions were justified in the course of resisting an unlawful arrest.


Dropping the charges

I do not think it makes sense for the prosecution to continue to pursue charges against Rao because it fails the “decision to prosecute test”, which has 2 factors: (1) Is there a reasonable prospect of conviction? (2) Does conviction serve the public interest?  If there is no reasonable prospect for conviction, the public interest does not matter.

Based on all the facts that have been made public, I do not see a reasonable prospect for conviction. For convictions, a judge would have to find, beyond a reasonable doubt, that Rao committed the offences for which she is charged.  It is hard to see how a judge could find beyond a reasonable doubt that Rao went too far in her actions to oppose an unlawful arrest, considering she was surrounded by several officers, attempted to verbally address the issue with the officers first, then had her daughter grabbed from her and that she walked away with a black eye, swollen neck, other bruises and scars around her wrists from being tightly cuffed. Further details indicate she also suffered from a broken wrist and had a concussion.  Her background of trauma would be relevant to what was reasonable in the circumstances concerning her intent.  Even if there were any minor injuries of scratches to police, they could hardly compare to what happened to her.

If it is somehow found that there is a reasonable prospect for conviction, the public interest should play a big role.  Public confidence in the administration of justice is a major part of the public interest test, which includes, “whether the consequences of a prosecution or conviction would be disproportionately harsh or oppressive”.  Considering the illegalization of carding in Nova Scotia due the racial bias in its use, there is plenty of evidence to support a public interest in stopping prosecutions that are associated with racial profiling.

Asaf Rashid is a criminal defence and immigration lawyer who is on a temporary leave from practice while he is doing other work in Halifax

Public interest and climate justice protests

As another climate strike date approaches on November 29, 2019. There will be people taking to the streets and there is always the possibility of disruptive actions to create more pressure.


It is notable that the climate justice movement’s unrelenting action appears to be  creating a new normal.  On November 18, 2019, the Crown dropped mischief charges against 20 people who were arrested as part of the Extinction Rebellion (XR) protests in Toronto, which non-violently, and temporarily, occupied and blocked the Bloor Viaduct bridge on October 7, 2019.  XR is part of a global movement of using civil disobedience to push for action on climate change.  This was great result for those who were arrested because it relieved them of costs in money, time and anxiety in dealing with the criminal justice system.


The Crown decided not to prosecute because it, “would not being in the public interest”.  The decision means, in part, that non-violent civil disobedience to push for action on climate change has gained a level of legitimacy according to the justice system.  But the decision was not made in a vacuum.  That result was due, mainly, to the level of urgency of the issue and the normalization of the endless protests across the country, and globally, to ply pressure on governments and the extractive industry – and industry generally – for decisive action on the issue.  The XR protesters also has solid representation as their defence lawyer, Mike Leitold, took the position that the prosecution was not in the public interest.


But what does it mean to be “not in the public interest”?


Prosecutors have a standard for deciding whether to prosecute that is broken down into two parts: (1) whether there is a reasonable prospect for conviction and (2) whether it is in the public interest.  The first part deals with whether the prosecution has enough evidence to prosecute.  The case of mischief would have been easy to prove in the case of an intentional disruption of the use of a highway.  The criminal charge of mischief can be proven if someone, “renders property dangerous, useless, inoperative or ineffective”, or, “interrupts or interferes with the lawful use, enjoyment or operation of property.”


The whole decision to drop rested on the public interest issue.  Prosecutors have discretion to decide whether to prosecute is in the public interest, especially if the people accused have no criminal record, the offence does not involve violence, those arrested were cooperative and there if not prosecuting would keep public confidence in the justice system.  These factors all worked favourably for the XR protesters.  Much of the public would probably lose confidence in a justice system that prosecutes ordinary people, including kids and seniors, for taking direct action for an issue that even mainstream politicians have agreed is critical for the future.

Ontario Legal Aid Cuts: class warfare

Legal aid is necessary because legal services cost money, and not everyone can afford them. Lives and fundamental rights to security of the person are often on the line when facing legal challenges. Our legal system doesn’t work for the poor and working poor of society. Recent cuts to Legal Aid  Ontario (LAO) represent a piece of a rotten whole and provides an opportunity to pose larger questions about access to justice beyond breadcrumbs. In this post, I will reflect on these issues, including the role of legal aid,  and the prospects for larger challenges to access to justice.


The cuts 

On April 11, the Ford government of Ontario cut Legal Aid Ontario (LAO) by 30%, which amounts to $133 million. As part of the gash, they almost entirely eliminated refugee and immigration coverage, with assistance for filling out Basis of Claim forms still in tact (this is about as minimal as possible). From my understanding, zero legal aid money will go towards refugee hearings, immigration detention reviews and challenges to deportations and other immigration issues. Many will face the peril of navigating the complex maze of Canadian immigration law, squared against legally armed government lawyers, defenceless. Losses will mean self-reps never making their case, getting deported to perilous circumstances, staying locked in immigration detention, being separated from their children, etc.

Cuts to LAO will impact low income people facing a host of legal issues as funding cuts are downloaded by LAO onto community legal clinics.  Parkdale Community Legal Services (PCLS), the largest of these clinics has been put on notice. They have been delivering necessary legal services to their community since 1971 and currently assist with legal issues including housing, worker’s rights, immigration, social assistance and violence.  In a May 3 statement from their board and staff, they stated:

On April 30th, we received communication that Legal Aid Ontario is unwilling to commit to more than one year of funding to the new lease and is unwilling to support any set up costs at the next site. The alternative option presented was for us to move out of our community.

LAO has also indicated that PCLS’ immediate and ongoing funding is uncertain.

The cuts are aimed at poor and working class people facing numerous legal challenges. In response to the cuts, Dana Fisher, spokesperson of the union representing LAO lawyers told CBC:

You’re looking at immediate impacts to defending people’s rights to liberty, to access to justice, to people being able to fight for custody to their children and access to their children, including women who are fleeing domestic violence.


From the immigration perspective, these are individuals who are facing extradition and torture and persecution and these are real lives that are going to suffer as a result of these cuts,”


Why Legal Aid?

Our legal aid system largely developed post World War II in the course of the substantial expansion of (uneven) wealth in society. In the UK, the 1949 Legal Aid and Advice Act was created to regularize the support for poor people having to navigate the legal system.  In Ontario, the Law Society Amendment Act was established in 1951. It helped establish funds for a small number of criminal and civil cases. In the 1970s, community legal clinics grew and eventually spread across the Canada, to assist in the delivery of some legal services to those in need (see this link for a brief overview from LAO). The only reason, I would argue, that legal aid was created at all was due to a contradiction in the rule of law.  The rule of law, one of the axioms of the Canadian legal system, states that no one is above the law and that the law applies equally to all (whether sic king or pauper). The legal system is not supposed to be only for the rich and powerful to abuse the poor. Yet, with a money-based legal system, that is exactly what happens.  To stem the bleeding and offer a palliative to the poorer in society, we have legal aid. It is a painkiller and coagulant to a legal system where the poor are not supposed to have the same chance as the rich.


The bigger picture of inaccessible justice

In 2013 the Canadian Bar Association issued a report titled, “Reaching Equal Justice”, which was both an overview of the depth of the problem of inaccessible justice and a call to action by lawyers to do more to stem the gap. The authors noted that there was — and nothing has changed on this front — overwhelming public support for legal aid and measures to make legal services accessible (page 16):

While there is generally low public awareness about legal aid, opinion polls have shown that when asked more detailed questions, people express strong and consistent support for providing adequate publicly funded legal aid. Polls have shown overwhelming support (91-96%), with 65-74% expressing the view that legal aid should receive the same funding priority as other important social services. Canadians believe justice systems must be accessible to all to be, in fact, just – and publicly funded services are required to get to equal justice. The current lack of confidence in our justice system suggests instead a perception that justice is inaccessible and even unfair.

It is no wonder that people think that justice is inaccessible. By and large, it is for most. The entire superstructure of legal services, involving the necessity of ongoing training, membership, liability insurance and overhead makes it extremely challenging to offer low cost legal services. The apparatus simply is not designed to deliver these results, but to favour high costs for wealthier clients and serves to give prosecution a default advantage.

As someone who has struggled to make legal service affordable, as a new lawyer, I can say that the challenge of trying to offer affordable services in private practice can be a balancing act on the edge of a cliff, where the lawyer and the client’s financial survival are both on the edge.


The present context

The cuts to LAO could raise a few issues about the legality of further cuts to legal aid, and has the opportunity to create  wedge to bring constitutional challenges to other exclusions from mandated government support for legal services. In a recent article, law professors Sean Rehaag and Sharry Aiken stated:

Currently, legal aid must be provided in many criminal proceedings as a matter of constitutional law. The result is that legal aid resources go largely to criminal law services, at the expense of legal services for low-income people facing eviction, intimate partner violence, workplace discrimination, deportation, being cut off social assistance and other important legal challenges.


… A Supreme Court of Canada case, New Brunswick v G(J), establishes that legal aid is constitutionally required in certain non-criminal legal proceedings where the rights at stake are very serious, where the proceedings are complex and where the litigant is not capable of self-representing — all factors that are present in many refugee hearings.


It would be ironic if the Ford cuts lead to litigation that establishes not only a constitutional right to publicly funded counsel for refugees, but that also helps pave the way for constitutionally mandated legal aid for low-income and disproportionately racialized people with other important non-criminal law legal needs.

The G(J) case was a marker for access to justice in Canada. It constitutionalized the right to legal aid in cases where parents risk losing custody of their children to the state. At the heart of the matter was the effect that denying legal representation had on the psychological or physical integrity of a person:

1   The Chief Justice — This case raises for the first time the issue of whether indigent parents have a constitutional right to be provided with state-funded counsel when a government seeks a judicial order suspending such parents’ custody of their children.  It comes before the Court as a result of Legal Aid New Brunswick’s decision not to provide legal aid to the appellant after the Minister of Health and Community Services of New Brunswick sought to extend an order granting the Minister custody of the appellant’s three children for an additional six months.  The decision not to provide the appellant with legal aid was made pursuant to a policy in force at the time of her application which stipulated that no legal aid certificates would be issued to respondents in custody applications made by the Minister of Health and Community Services.

2  I have concluded that the Government of New Brunswick was under a constitutional obligation to provide the appellant with state-funded counsel in the particular circumstances of this case.  When government action triggers a hearing in which the interests protected by s. 7  of the Canadian Charter of Rights and Freedoms  are engaged, it is under an obligation to do whatever is required to ensure that the hearing be fair.  In some circumstances, depending on the seriousness of the interests at stake, the complexity of the proceedings, and the capacities of the parent, the government may be required to provide an indigent parent with state-funded counsel.  Where the government fails to discharge its constitutional obligation, a judge has the power to order the government to provide a parent with state-funded counsel under s. 24(1)  of the Charter  through whatever means the government wishes, be it through the Attorney General’s budget, the consolidated funds of the province, or the budget of the legal aid system, if one is in place.


58  This Court has held on a number of occasions that the right to security of the person protects “both the physical and psychological integrity of the individual”: see R. v. Morgentaler, [1988] 1 S.C.R. 30, at p. 173 (per Wilson J.); Reference re ss. 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123, at p. 1177; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at pp. 587-88.  Although these cases considered the right to security of the person in a criminal law context, I believe that the protection accorded by this right extends beyond the criminal law and can be engaged in child protection proceedings. …

As Rehaag and Aiken pointed out, cuts to funding for legal aid for refugees could be considered a violation of the rights to security of the person, as set out in G(J). Constitutional challenges can raise the level of conversation about the purpose of legal aid and broader issues of access to justice.  However, attention must be drawn to the far larger problem, whereby poorer workers, who are ineligible for legal aid, will still be unable to afford legal services for many important cases, including when they face criminal charges, evictions or lawsuits.

In the meantime, lawyers, legal aid workers, staff of community legal clinics who are being impacted by the cuts and are pushing back, such as PCLS and the union representing legal aid lawyers.

Health care for all: immigration status as a ground of discrimination

February 12, 2019 was a national day of action to call for the inclusion of non-status people in our health care system in Canada. The call to action touches on a gaping hole in human rights protections in Canada: the exclusion of immigration status as a ground for discrimination.

Anyone who has less than Canadian citizenship status in Canada faces discrimination, with those with the lowest status, being non-status, facing the worst of all. Despite this daily reality, immigration status is not included as a ground of discrimination in Canadian law. Canadian law only goes so far as to count citizenship (included in the Ontario Human Rights Code) as a ground of discrimination, but not immigration status more generally. This leaves countless people unprotected.

This post will focus on access to health care for non-status people by focusing on the case of Nell Toussaint and the decision at United Nations Human Rights Committee about her case, which also rebuked the general exclusion of non-status people in Canada from health care. With renewed pressure on the government to include non-status people, it is important to put some more focus on it.

Charter anti-discrimination law

I will only focus anti-discrimination law under the Canadian Charter of Rights and Freedoms because the subject of this post only deals with that.

Section 15 of the Canadian Charter of Rights and Freedoms states:

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

It has a very short list; however, each item on the list is not a closed box, but open to interpretation if legal precedents are set.* For example, “sex” now includes sexual orientation. In contrast, “national origin” does not include immigration status. In order to include a new category, it requires showing that there’s some “immutable” characteristic that is being used to discriminate against a person. That means something that is a “deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs.” (See Supreme Court of Canada Egan case). The unchangeable aspect has been criticized because, for example, religion is sometimes changed without great personal cost.

One might think that national origin or citizenship is the same as immigration status. It isn’t. Using an example from provincial human rights law, discrimination based on national origin would be, for example, a landlord denying a possible tenant an apartment because that possible tenant is from Pakistan, and the landlord doesn’t rent to people from Pakistan. Discrimination based on immigration status covers many more people. Examples include the one being discussed in this post, as well as the relatively lower standard of non-status person’s liberty in immigration detention compared with the liberty interest of everyone else with regards to detention under the criminal justice system (a subject for another day).

Health care for non-status people

People without status in Canada do not have any guaranteed access to heath care, even for urgent care, unless there is a demonstrated public safety risk (i.e. only if people considered more human are affected). People without status, who may number ½ million in Canada or more, stay sick or injured because they often have no recourse, except for limited services of community health clinics in some cities. The troubling absence of proper access to the of non-status people to healthcare was highlighted in a rebuke of Canada’s denial of non-status people by the United Nations Human Rights Committee in 2018.

On July 24, 2018, the case of Nell Toussaint was decided by the United Nations Human Rights Committee (see Toussaint decision). She came to Canada in 1999 as a visitor, but then remained and worked for many years in Canada. She initially paid out of pocket for her health care expenses. This severely limited her ability to access health care when needed. By 2008, she developed chronic fatigue and her health began to deteriorate further. By 2009, her condition became life-threatening, as she was diagnosed with pulmonary embolism and complications from poorly controlled diabetes. The Committee decided that Canada acted in a discriminatory fashion in her case and commented that the omission of non-status people in Canada from health care coverage through the Interim Federal Health Program (IFHP) was systemic discrimination. Canada was ordered to compensate her (emphasis added):

11.6 The Committee notes the author’s claim under article 26 that excluding her from IFHP coverage on the basis of her “immigration status” is not an objective, proportionate or reasonable means of deterring illegal immigration, in particular as her life-threatening health conditions were not taken into account. The Committee also notes the State’s party submission that in allocating public health care funding, it may reasonably differentiate between those with legal status in the country, including immigrants, and foreign nationals who have not been lawfully admitted to Canada and that legal residence is a neutral, objective requirement that cannot be considered as a prohibited ground of discrimination.

11.7 The Committee recalls its General Comment No. 18 (1989) on non-discrimination, in which it reaffirmed that article 26 entitles all persons to equality before the law and equal protection of the law, prohibits any discrimination under the law and guarantees to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. While article 2 limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, article 26 does not specify such limitations and prohibits discrimination in law or in fact in any field regulated and protected by public authorities. The Committee also recalls that in its General Comment No.15 (1986) on the position of aliens under the Covenant, it stated that the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. While the Covenant does not recognize the right of aliens to enter and reside in the territory of a State party, the Committee also stated that aliens have an “inherent right to life”. States therefore cannot make a distinction, for the purposes of respecting and protecting the right to life, between regular and irregular migrants. More generally, the Committee also recalls that not every differentiation based on the grounds listed in article 26 amounts to discrimination, as long as it is based on reasonable and objective criteria, in pursuit of an aim that is legitimate under the Covenant.

11.8 The Committee considers that in the particular circumstances of the case where, as alleged by the author, recognized by the domestic courts, and not contested by the State party, the exclusion of the author from the IFHP care could result in the author’s loss of life or the irreversible negative consequences for the author’s health, the distinction drawn by the State party, for the purpose of admission to IFHP, between those having legal status in the country and those who have not been fully admitted to Canada, was not based on a reasonable and objective criteria, and therefore constituted discrimination under article 26.


13. In accordance with article 2 (3) (a) of the Covenant, the State party is under an obligation to provide the author with an effective remedy. This requires it to make full reparation to persons whose rights recognized by the Covenant have been violated. Accordingly, in the present case, the State party is obliged in particular to provide the author with adequate compensation for the harm she suffered. The State party is also under an obligation to take steps to prevent similar violations in the future, including reviewing its national legislation to ensure that irregular migrants have access to essential health care to prevent a reasonably foreseeable risk that can result in loss of life.

The decision is no binding on Canada.

Along the way to the decision of the UN Human Rights Committee, Ms. Toussaint sought a review of her rejected coverage by the IFHP. Her application for review was further rejected by the Federal Court and the Federal Court of Appeal. Interestingly, the Federal Court found that her rights to life under section 7 of the Charter were infringed as a result of being denied IFHP coverage. However, the treatment was considered justifiable, as it was held that Canada could lawfully deny non-status people coverage. The reasoning applied a rather narrow assessment of “choice”, Justice Zinn stating: “Although she entered this country legally, she chose to remain here illegally; there is nothing stopping her from returning to her country of origin.” (at para 93). Leaving a place that she built a network of supports to go somewhere that she had no assurances should not be considered a fair choice.

That being said, there was an interesting analysis about discrimination that may have left a door open for immigration status as a potential analogous ground. The Federal Court did not find that she was discriminated against due to the nature of her disability. With regards to immigration status, Justice Zinn said the following very interesting words (emphasis added):

[81] (...) Only if “immigration status” is an analogous ground could the applicant’s exclusion from IFHP coverage be said to violate s. 15(1) of the Charter.

 [82] The applicant did not argue that “immigration status” was such an analogous ground.  It is not for the Court in Charter cases to construct arguments for the parties or advance them on their behalf.  Given the applicant’s failure to argue that “immigration status” was an analogous ground, the applicant’s s. 15(1) argument must fail.

I believe those words are indicative that the Court would have readily considered the inclusion of immigration status as an analogous ground.

Toussaint decision and immigration status as ground of discrimination   

The decision is not binding on Canada. Even though it is an order, it is not an order Canada must follow. That being said, it does have application, perhaps more than may be apparent at present. First of all, while a decision of the UN Human Rights Committee is not binding on Canada, the International Covenant on Civil and Political Rights (Covenant) was signed and ratified by Canada, with much of it being adopted into the Charter and human rights law in Canada … just not the part about “status” as a ground for discrimination.

The UN Human Right’ Committee’s conclusion about discrimination based in immigration status found a violation of the following section of the Covenant (which sounds close in many respects to s. 15 of the Charter):

26. All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

That brings it close to existing law in Canada. Supreme Court of Canada jurisprudence brings it closer. The 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship and Immigration) held that International law, even if not binding on Canada, cannot be ignored. Speaking about the international Convention on the Rights of the Child, the majority stated:

69 (…)   I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament.  Its provisions therefore have no direct application within Canadian law.

70  Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review.  As stated in R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:

[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional.  These constitute a part of the legal context in which legislation is enacted and read.  In so far as possible, therefore, interpretations that reflect these values and principles are preferred. [Emphasis added.]

This precedent has been applied countless times to, for example, help protect the best interests of children in decisions considering the removal of a parent from Canada.

Coming back to the subject at hand, the next time there is an opportunity to raise the issue of discrimination of a person based on immigration status, I think there is a case that it should be found an analogous ground due to the effect of the Toussaint decision and ongoing social pressure. The “immutable” characteristic required to add an analogous ground of discrimination to s. 15 of the Charter has some flex and has been responsive to social pressure in the past.

Immigration status is not easily changed. People exist in such a condition in Canada for months or years for complicated reasons. Just leaving may not be so easy.

_ _ _

*The Charter is almost impossible to amend, so the  analogous grounds approach is taken instead.

UN Global Compact for Safe Migration: It does not go far enough

On December 8, 2018, Canada stated that it would adopt the UN Global Compact for Safe Migration. What followed was an unsurprising and reactionary set of protests across the country. People protesting did so in order to try and oppose the idea of more people – who they don’t like – coming to Canada to stay. The reality is that the Compact does not instill any formal obligations on Canada and does not go nearly far enough to respond to the migration crisis.

In this post, I will try and explain what the legal meaning of this Compact is for Canada and demystify some of the issues with the Compact that opponents are raising. These include the idea that the Compact will compel Canada to let in more migrants, that Canadian media coverage will be forced to be pro-migration, and the issues raised with international cooperation among States to support more migration. I will also suggest that far more is needed to support those who are moving due to adverse conditions in their countries of origin. I will not be discussing economic migration in any significant detail because I think that will better be placed in its own piece.


The Compact

The (GCSM) was arrived at on July 18, 2018. The Compact is nothing more than a pact to cooperate in order to respond to an unprecedented global crisis of displacement, where over 68 million people have been forcibly displaced and over 25 million have been the victims of persecution. It simultaneously sets out to build cooperation to better facilitate improved economic migration and cooperation to alleviate security concerns people attempt to make journeys to new homes. The issues that the Compact proposes to address include:

  • the increasing number of people displaced due to natural disasters and climate change-induced insecurity, including due to flooding, famine, droughts, shoreline erosion, loss of land to sea level rises, etc;
  • the increasing number of people forced to flee due to persecution due to violence and the threat of violence in a world of increasing insecurity
  • a world of mobile people, where economic migration is both necessary and unstoppable

A large part of the Compact calls for States to better cooperate to develop early warning systems for disasters and to do better disaster mitigation. This is all to prevent the need for people to move from their homes. Another objective is to improve “skill-matching”, so that businesses in different part of the world can meet their employment needs with migrant labour, whether permanent or temporary. Big businesses are no doubt a major driver of this aspect of the Compact. A further objective of the Compact is to ensure global security cooperation, to prevent the movement of those without proper identification. Some of these people without proper identification may be the most precarious of all, obtaining any identification possible to flee insecure conditions. Canada’s Immigration and Refugee Protection Act and Regulations already allows leeway to people with false identification if they procured it in the urgency of trying to flee persecution.

The Compact does not actually change any international or domestic laws. It does not improve or even alter legal entitlements or rights to claim refuge or immigrate to Canada. The Compact does not even come close to a so-called free-for-all for people around the world to move. It does nothing to open borders. It falls short of giving actual responsibility to signatory states to take in more migrants.


The Legal Authority of the Compact?

In the first week of December, there was a barrage of media about the Compact forcing Canada to let in more migrants, covering Conservative leader Andrew Scheer’s pronouncement that the Compact was legally binding and would “threaten Canadian Sovereignty“. There were responses to this inaccurate statement.

The Compact is not legally binding, but a statement by all signatory States to do their part for safe migration. It is a follow up to the 2016 New York Declaration for Refugees and Migrants, which is also not legally binding. Specifically, the Compact states (point 7 of the preamble):

This Global Compact presents a non-legally binding, cooperative framework that builds on the commitments agreed upon by Member States in the New York Declaration for Refugees and Migrants. It fosters international cooperation among all relevant actors on migration, acknowledging that no State can address migration alone, and upholds the sovereignty of States and their obligations under international law.

Since it is not legally binding, no state can be compelled to do anything that is stated in the Compact. There is no penalty for disregarding any or all of the objectives in the Compact. For good measure, the Compact is carefully worded so as not to avoid the language of legal obligations, but focuses instead on calls to action. It is an aspirational document.

Still, the Compact is not legally meaningless. It will give direction to existing immigration laws and regulations. The basis for this reasoning has been with us for a number of years already. Even without domestic legislation to adopt international treaties, conventions, compacts or other international instruments, Canada is expected to follow the values and principles of signed international commitments when there are no legal barriers to doing so. This was stated by former Supreme Court of Canada justice former Justice L’Heureux Dubé in the 1999 Supreme Court of Canada decision, Baker v. Canada (Minister of Citizenship & Immigration).

Now that the Compact is in place, and signed by Canada, it provides some better basis for arguing that environmentally displaced persons (aka climate refugees, environmental refugees, etc) should be able to stay in Canada on humanitarian and compassionate grounds. The argument would be that, by way of humanitarian and compassionate grounds, it would be wrong to send someone back to a country to face starvation or death or bodily harm through environmental conditions. But this is not the same thing as arguing that persons are environmental refugees and that Canada has an obligation to provide refuge to them. Refugee claimants can also raise a humanitarian and compassionate claim if their refugee claim fails.


Migrants controlling the media?

The Compact states the following under objective 17:

We commit to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law. We further commit to promote an open and evidence-based public discourse on migration and migrants in partnership with all parts of society, that generates a more realistic, humane and constructive perception in this regard. We also commit to protect freedom of expression in accordance with international law, recognizing that an open and free debate contributes to a comprehensive understanding of all aspects of migration.

This one objective has raised a very loud false alarm. As reported by Global News, Andrew Scheer stated that the Compact, “attempts to influence how our free and independent media report on immigration issues.”

Again, the compact is not legally binding. No media can be forced to report anything. Furthermore, the protection of freedom of expression under Section 2 of the Canadian Charter of Rights and Freedoms (Charter) prevents Canadian laws from forcing media to be pro-migration. The Compact is merely trying to instill better international cooperation to stop bigoted reporting about migrants and refugees, whereby refugees and migrants are vilified in the cause of jingoistic patriotic fervour for some purist ideal of citizenry, such as white nationalism. Canada agreeing to cooperate, “to eliminate all forms of discrimination, condemn and counter expressions, acts and manifestations of racism, racial discrimination, violence, xenophobia and related intolerance against all migrants in conformity with international human rights law,” is something Canada already has to do in order to be in conformity with its international commitments, human rights laws, the Charter, and all other laws that prohibit discrimination.

Following up on the Compact can finally lead to the clear recognition that grounds of discrimination include immigration status. There has been some movement in this direction at the Human Rights Tribunal or Ontario. A recent decision, provides a precedent for preventing employers from requiring proof of citizenship or permanent resident status for those who are legally allowed to work in Canada. However, this is very little protection. Legislation is needed to ensure protection against discrimination due to immigration status.


The protests

There were a number of protests against the Compact (examples: 1, 2, 3, 4; general coverage: 5), shouting slogans such as “Canadians first” and calling for Canada to withdraw from the Compact. It is likely there will be many more, especially in the lead up to the next federal election.

The interesting thing about these protests is that they are in response to exactly nothing. No laws were changed by Canada saying it would adopt the global Compact. All it does is set out a future direction that Canada should be expected to take in the near future.

I do not think that those who organized the protests, including the far-right, anti-Muslim and anti-migrant group La Meute, actually think that the Compact is legally binding. The Compact is clear enough that an average child could figure that part out. These groups are merely opportunists, who are trying to stir up a misinformation laced, anti-immigration fervour to pressure politicians to eventually change domestic immigration laws to build legal barriers at the border.


Binding international law to better protect environmental migrants is required

Lack of legal recognition and protection of environmental migrants is a gaping hole in international and domestic law. A refugee does not include a person fleeing from environmental destruction or displacement. These circumstances include directly human-caused events, such as industrial developments and disasters, or (climate change-exacerbated) natural events, such as typhoons. The definition of refugee only includes those fleeing from human-caused persecution. The 1951 Refugee Convention and 1967 protocol were designed only to respond to those who were fleeing from persecution of the Second World War and international and internal conflict that followed it.

This is out of touch with our lived reality. Most of those who are displaced around the world are environmentally displaced. According to a report by the Internal Displacement Monitoring Centre, the total number of new displacements in 2017 was approximately 31 million people. Approximately 19 million were environmentally displaced, with 12 million displaced due to violence and conflict.

Canada needs to do its part to push for binding international law to recognize environmental refugees and for obligations on States, including itself, to take in environmental refugees. Domestic legislation in Canada should be developed simultaneously.

Trying to get rid of a criminal record is further punishment: why the records suspension regime needs to be entirely overhauled


In this post, I will argue that the process of trying to have a criminal record removed is fundamentally flawed and should be considered unlawful. I am not going to put any time into the subject of cannabis possession records possibly being suspended or pardoned without a fee. There has already been substantial attention on this issue, but it is a drop in an otherwise empty bucket. I will will draw attention to the rest of the bucket.

I say the entire regime of trying to get rid of a criminal record is flawed because the process punishes those with criminal records through fees – that are better described as fines – and scrutinizes those with criminal records for new charges even when they did not result in a conviction.

Removal of a criminal record used to be called a “pardon”, but since the former Harper Government’s Safe Streets and Communities Act of 2012, it is now called a “record suspension”. The distinction is significant. A pardon is supposed to mean that the ordeal is over. A suspension means that it continues to hang over a person’s head and can be brought back, which is made clear in section 7 of the Criminal Records Act. This change points out more clearly that one is not supposed to be able to just get rid of a criminal record in the present order.


Why is a criminal record part of the sentence?

When does a person’s sentence for a conviction end? You would think that it is at the time that the person completed their actual sentence, which may include jail and a period of probation. In actuality, a criminal record itself acts as an extension of a sentence. As stated by Canadian lawyers Robert Israel and Christine Mainville in a January 2018 contribution to the Globe and Mail:

In our Orwellian world, with damaging personal information merely a click away, a criminal conviction alone can easily become the most debilitating part of a person’s sentence. And so, for many offenders, the ability to eventually obtain a pardon is critical.

Theoretically, once there has been accountability for the crime through a sentence, the punishment is supposed to end. It does not. Criminal records often prevent convicted people from obtaining gainful employment and obtaining housing. It also results in the inability to travel to the United States and other countries. People with criminal records are also often prevented from volunteering in the community, as coaches or in other situations where a criminal record check is done. A criminal record is supposed to be a burden that hangs over a person’s head after a criminal sentence is complete.


The process of removing a criminal record

Criminal Records are legislated under the Criminal Records Act. Under this Act, a person with a criminal record needs to meet the following eligibility criteria to remove the record (I’m leaving out the part on “service offences” while in Service of Her Majesty the Queen):

4 (1) A person is ineligible to apply for a record suspension until the following period has elapsed after the expiration according to law of any sentence, including a sentence of imprisonment, a period of probation and the payment of any fine, imposed for an offence:

(a) 10 years, in the case of an offence that is prosecuted by indictment … or

(b) five years, in the case of an offence that is punishable on summary conviction …


4.1 (1) The Board may order that an applicant’s record in respect of an offence be suspended if the Board is satisfied that

(a) the applicant, during the applicable period referred to in subsection 4(1), has been of good conduct and has not been convicted of an offence under an Act of Parliament; and

(b) in the case of an offence referred to in paragraph 4(1)(a), ordering the record suspension at that time would provide a measurable benefit to the applicant, would sustain his or her rehabilitation in society as a law-abiding citizen and would not bring the administration of justice into disrepute.

For those who may not be familiar with the criminal law terminology in this section, a “summary” offence is considered less serious and there is generally little to no risk of jail time, especially for a first-time offender. An indictable offence is considered much more serious and often carries a risk of many months or years in jail (such as robbery, murder, aggravated sexual assault and various firearms offences).

Five years and ten years are already long periods to wait. But the waiting time is actually significantly longer than that. The period does not begin until after the sentence was completed. This means that the clock only starts running after any jail, probation or fine has been completed.

Take an example. Let’s say a person was convicted today of an indictable theft offence, where property worth $10,000 was stolen as part of a break, enter and theft. In this example, the person was convicted and sentenced to a one-year jail term followed by another year of probation. This person ends up waiting 12 years after the conviction before a record suspension is even possible. But the story does not end there. Record suspensions are not automatically awarded. They require a paid application and meeting some very discretionary – and improper in my opinion – standards.

There is no real explanation of “good conduct” under the Act, but I will get into what this means in the next section. As for the “measurable benefit”, those with criminal records of indictable offences also must show how removal of the record would be a of benefit to them and good for society as well. What this translates into is people having to explain opportunities that have been denied due to the record – such as better jobs or any job at all – and how such opportunities would be pursued if the record was removed. There also must be an explanation about how a record suspension is justifiable in their case because they are good examples for society, of the redeemed ones among an otherwise bad lot. The onus is on the applicants to show that they are deserving.


Pay the fees and “be good” and a record suspension may be in your future

In order to obtain a record suspension, a person has to pay an application “fee” and convince members of the Parole Board of Canada that they are worthy. See the many steps here.

The application fee is $631. This amount will not be affordable and often impossible for those with criminal records. Those with criminal records will not likely be able to obtain employment which offers enough disposable income for such a huge fee. In my opinion, this is not a fee, but a fine. The distinction is important. A fee is a cost for a service. A fine is punitive. In 2012, the Harper Conservatives increased the amount required for a “pardon” (as it then was) from $150 to the new amount of $631.

There were not suddenly 4-times as many people applying for record suspensions, thus requiring 4-times as many resources. The number of people convicted did not grow four-fold, nor at all for that matter. The enormous increase was part of the former federal government’s “tough on crime” agenda. The amount was designed to make life tougher for those with convictions. In other words, it was a punishment. Because the fines have been re-punishing people for offences for which they were already convicted, these fines ought to be seen a contrary to the Canadian Charter of Rights and Freedoms, section 11(h) (emphasis added):

11. Any person charged with an offence has the right

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again.

Another enormous hurdle is the requirement for “good conduct”. The Parole Board of Canada makes decisions on applications for record suspensions. They are guided by the Decision Making Policy Manual for Board Members . I find there to be a problematic and unconstitutional set of directions in the manual, including the following (Part 13.1 of the Manual)(emphasis added):

Decision-Making Criteria and Process

10. When making a decision on a pardon or a record suspension application, Board members will assess whether the applicant has been of good conduct. For applications that involve offences that fall under paragraph 4(a) of the CRA as it read on or after June 29, 2010 and before March 13, 2012, or under paragraph 4(1)(a) of the current CRA, Board members will also assess whether the pardon or record suspension would provide a measurable benefit to the applicant, would sustain the applicant’s rehabilitation into society, and would not bring the administration of justice into disrepute.


11. For the purpose of the CRA as it read on or after June 29, 2010 and before March 13, 2012, as well as the current CRA, good conduct is considered behaviour that is consistent with and demonstrates a law-abiding lifestyle.

12. In assessing conduct, the Board is not subject to the same standards as a criminal court. The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.

13. The type of information and documentation that may be considered includes:

(a) information from the police about a non law-abiding behaviour that did not result in a charge;

(b)information about an incident that resulted in a charge that was subsequently withdrawn, stayed, or dismissed, or that resulted in a peace bond or acquittal, especially where the charge or charges are of a serious nature, and/or are related to convictions on the record for which the pardon or the record suspension is requested;


When I first saw these decision-making directions, I had to double check that I was not reading something before the Canadian Charter of Rights and Freedoms. I was not. The decision-maker’s manual is current and is still applicable. The edition of the manual I cited is from April 4, 2018.

There are a number of directions in the manual that disregard rights in the Charter in my opinion. Section 12 in the record suspensions part of the manual states: “The presumption of innocence and the relating rights are not applicable in the context of a pardon or a record suspension application.”

The Charter says the following about the presumption of innocence:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

Section 13 of the manual’s section on record suspensions states that “non-law-abiding behaviour” that did “not result in a charge” or charges that were later “withdrawn, stayed or dismissed, or that resulted in a peace bond or acquittal” could still be used to counter a person’s good character. This is incredibly problematic because the effect of this is that unproven allegations are used to extend a sentence. The presumption of innocence is replaced by a presumption of guilt for those once convicted, and the presumption is not even defeated by an acquittal or withdrawal of the charge(s)

People are regularly denied record suspensions based on new charges that were never proven (no conviction). The result is that the unforgiven person remains tied down by the criminal record and is stuck in a life of poverty and negative stigma.

A government decision which results in an unjustified infringement of a person’s security of the person should be contrary to section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Security of the person was defined in New Brunswick (Minister of Health & Community Services) v. G. (J.), [1999] 3 S.C.R. 46 (S.C.C.), at para. 60:

The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety.

A criminal record or any criminal history that can impact on a person’s ability to fully participate in society has a serious psychological impact, which is by design.

This record suspension regime particularly affects those communities who are regularly targeted by police: people with any criminal history in Black, Indigenous and poor communities in general are often charged or at least investigated by police when there is a crime reported in the neighbourhood. Even when someone is investigated as a suspect, the fact that the police spoke to a person as a suspect, without a charge being laid, is likely “non-law-abiding” behaviour.

The stigmatizing, intentionally negative psychological impact, and life impacting effects of a criminal record have been well recognized in Canadian law. In the Ontario case of J.N. v. Durham Regional Police Service, (2011 ONSC 2892), the court stated (emphasis added):

[127] … to many people, our work and our chosen career is a primary source of our own self-worth and, in fact, is considered a major component of one’s own value as an individual. Many people choose as a goal a certain career; as in the present case, they train for it and can find it devastating when, despite their best efforts, they cannot obtain employment in that field. … in the present case, the inability to obtain work is not connected with the job market or inability to perform, but rather with a withdrawn criminal charge and blemished CIR …

[128] Accordingly, if J.N. is unable to ever be able to obtain employment in her chosen field and is forced to work in unrelated fields of work or rely on public assistance, it can be easily understood to cause serious psychological impact on the applicant. When this results from something arising from your reputation or the stigma attached to criminal charges, this impact would only become more severe. On an objective basis, then, I am able to find that the applicant’s inability to obtain employment resulting from her inability to clear the CIR is, objectively, something which would cause serious psychological impact. This accordingly is something that can affect the security of the person within the meaning of s. 7 of the Charter.

In the Supreme Court of Canada case of R. v. Malmo-Levine (2003 SCC 7), the intentionally stigmatizing and punitive effects of criminal records was noted:

[172] … There is no doubt that having a criminal record has serious consequences. The legislative policy embodied in the [Narcotics Control Act] is that a conviction for the possession of marihuana should have serious consequences. Therein lies the deterrent effect of the prohibition. The wisdom of this policy is, as mentioned, under review by Parliament. It appears that this review has been prompted, in part, by a recognition of the significant effects of being involved in the criminal justice system. For instance, background information from Health Canada states:

[B]eing prosecuted and convicted in a criminal court bears a stigma that can have far-reaching consequences in an individual’s life in such areas as job choices, travel and education. Participating in the criminal court process can also involve personal upheaval.

(Health Canada, “Information: Cannabis Reform Bill”, May 2003)

While courts have very clearly stated that a criminal record has a negative impact on a person’s psychological integrity, they have (so far) not found breaches of security of the person if a person simply has to apply for a record suspension. The existence of a process has been considered fair (See for example: Chu v. Canada (Attorney General), 2017 BCSC 630)

However, being denied a record suspension based on unproven charges, and having the criminal record hang over a person’s head, is something beyond a simple waiting period and going through a process. Such a denial ought to be considered arbitrary and not in accordance with the principles of fundamental justice.


Federal Government has claimed they aim to address the injustice but have not

The injustice of the fee was addressed, along with a number of other problems, in consultations with Public Safety Canada in 2016, and a report released in 2017. Among the findings was a staggering drop in record suspension applications. 2011/12 there were 29,829 pardon applications, but the number dropped massively to 12,743 records suspension applications by 2016. The reasons for the drop are those mentioned above: the fines (or “fees” as is wrongly portrayed) and the increased waiting times were particularly emphasized.

Public Safety Minister Ralph Goodale vowed to to overhaul the record suspension regime, removing the punitive elements. Nothing has happened so far.

Now that some attention has been focused on the issue of wiping records for pot convictions, it is time to focus on the bigger picture of injustice. Enough people have been struggling through poverty needlessly, and unlawfully in my view, due to criminal records for offences that occurred many years ago and due to failure to be deemed good and worthy by the Parole Board.

Unionization for inmate workers

A worker is a worker, whether in a factory, office building, field, mine or behind bars. All workers should have the right to a union. Workers need a union in order to minimize – since present social relations will not allow elimination – the great power imbalance between bosses and workers. Where the power imbalance is the greatest, so is the need for a union. Workers in jail are the most vulnerable workers in our society, facing the enormous power imbalance of having a boss who is also their jailor. Despite the imbalance, inmate workers have so far not succeeded in winning the right to a union. In this post, I will cover the fundamental right of workers to a union, how and why inmate workers have been denied this right and explain why a proper application of current employment and labour law should empower inmate workers to succeed in unionization.

I am going to limit the scope of what I am discussing below to federal inmate workers, who number approximately 9,000 in Canada. There is relatively very little inmate labour at provincial institutions, though it is still significant. Unionization has been successful in one case involving inmate workers at a provincial institution, way back in 1977: Amalgamated Meat Cutters. I will return to this case further below when discussing rehabilitation versus work.

The cases referred to in this post are all referenced at the bottom.


The development of collective bargaining rights in SCC jurisprudence

The right of workers to a union is a constitutional right. In the 2007 Supreme Court of Canada (SCC) case of Health Services, the SCC stated that the right to unionize is protected under section 2(d) of the Canadian Charter of Rights and Freedoms, the right to “freedom of association.” Over the years, further content was added to the right to collective bargaining. These pieces have included the right to a grievance procedure while a collective agreement is in place (Fraser), the right of workers to a union of their choice (Mounted Police), and even the right to strike (Saskatchewan Federation of Labour).

It is important to pay attention to why the right to collective bargaining has added content over the years. In Mounted Police, the SCC majority stated (paragraph 51):

As we have seen, s. 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals.

In Saskatchewan Federation of Labour (paragraph 51), the majority stated:

Striking – the “powerhouse” of collective bargaining – also promotes equality in the bargaining process …This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. In the Alberta Reference, Dickson C.J. observed that:

 [t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers.

Other cases at the SCC have said the same, justifying a constitutional right to collectively bargain. The key point is that workers need the right to collectively bargain to have the ability to assert their human dignity in the workplace. “Human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy are among the values that underly the Charter”, as was restated in Health Services (paragraph 81)


Inmates collective bargaining rights denied

Federal inmate workers have tried to unionize on at least two occasions over the last decade in cases that went to labour tribunals over unfair labour practices by the employer. The first two attempts were by the same individual, David Jolivet. Mr. Jolivet tried to sign up fellow inmates at the Mountain Institution at Agassiz, British Columbia and was denied access to them. He first went to the Public Service Labour Relations Board (PSLRB: federal public service) to argue that the employer used unfair labour practices by denying him access to potential members, but was shut out by the Board. In the decision, Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 [Jolivet], the Board decided that the inmate workers were not public service workers because they were not listed by the Public Service Commission (PSC). The Board added that even if the inmate workers were part of the public service, they were not “employees” in any case. Without employee status, there is no right to collective bargaining. The reason for denial of employee status, in the Board’s view, was that the inmate workers were undergoing rehabilitation more so than actual employment.

Mr. Jolivet took a second crack with the Canadian Industrial Relations Board (CIRB: federal private service under the Canada Labour Code), specifically for the CORCAN inmate workers (Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 [Confed]). CORCAN is an agency under the Correctional Service of Canada that employs inmate workers mainly to produces goods and services for federal government departments. Mr. Jolivet and his fellow inmate workers were shut out at the CIRB as well. They argued that the CORCAN workers fell under the Canada Labour Code because CORCAN is a crown corporation. The Board stated that a Crown corporation could only be created by statute or royal charter, which did not exist in the case of CORCAN.


Overcoming the barriers

In the Jolivet decision, the Board ruled that the inmate workers were not listed, therefore were not public service employees. However, the Jolivet decision was made before the SCC’s Mounted Police decision. In Mounted Police, the RCMP workers won a right to be included on the list of public service employees despite having been expressly excluded. The RCMP workers wanted a union of their choice rather than the Staff Relations Representative Committee, which was a labour management body under control of management. RCMP workers were excluded from employee status because the employer thought that RCMP employees with a union of their choice would be compromised in their neutrality, stability, reliability, objectivity and independence. The SCC majority did not see any rational basis on how these values would be compromised through unionization. They held that the RCMP workers were unjustifiably excluded from the exercise of their collective bargaining rights, and that it was underinclusive of s. 2(d) rights to leave them out.

Ironically, a decision that strengthened the rights of RCMP workers ends up useful for inmate workers. If expressly excluded workers can win employee status through the application of s.2(d) of the Charter, so can inmate workers. The major difference is the RCMP workers existed under the Public Service Commission. This difference should not be a barrier since the fundamental outcome of Mounted Police was to take non-employees and turn them into their opposite. If the argument was brought up correctly, it can be quite strong.

While this road is not impassable, it may be very difficult to convince an adjudicator or judge to order inclusion of inmate workers in the federal public service.

The other route, through the Canada Labour Code, was unsuccessful when Mr. Jolivet tried to claim that the inmate workers were employees of a Crown corporation. The requirements for a Crown corporation are a royal charter or creation through statute. CORCAN was not either of those. The other route through the Canada Labour Code is that the inmate workers are part of a “federal work, business or undertaking”, which is inherently under the umbrella of the federal government through s. 91(28) of the Canadian Constitution Act, “The Establishment, Maintenance, and Management of Penitentiaries.” CORCAN workers would fit under this umbrella under two counts. For one, CORCAN operates through the Correctional Service of Canada, as a rehabilitative work program. If the workers are not part of the public service, then they are private sector employees whose work is federal in nature. Secondly, the material they produce is used by other federal government departments, implicating inter-provincial trade and a federal character. In the Confed case, the Canadian Industrial Relations Board said that there is no “residual authority” of that Board to include workers who are excluded from the public service, however, I do not think that is entirely correct. The reason is that every worker has to fit somewhere. I will explain this further below. As for the non-CORCAN workers (all the institutional workers doing the cleaning, cafeteria work, laundry room maintenance, etc), they were not dealt with in the Confed decision. As far as employee status for the purpose of unionization goes, they have not been explicitly excluded from the Canada Labour Code through the common law (to my knowledge).

There is also a recent federal court case, Guerin, which also excludes employee status for CORCAN workers under the Canada Labour Code. I will deal with that case further below, which I believe overshoots in its exclusion of inmate workers from employee status.

The Jolivet decision also excluded inmate workers for not being “employees” due to the rehabilitative character of their work. David Jolivet’s case focused on aspects of employment such as control by the employer, competition for jobs, and other basic details that make an employment relationship. The issue was about control by the employer and whether there was a “real economic benefit” (profit) for the employer through the relationship. The real economic benefit test in Fenton is the test to apply in the case of an employment relationship where there a rehabilitative aspect.

In Jolivet, the Board considered it possible for the inmate workers to be employees, but that the case before it did not meet the test. It considered the possibility largely on the basis of the Amalgamated Meat Cutters case. In Amalgamated Meat Cutters, the Ontario Labour Relations Board found that inmate workers of the Guelph Correctional Centre were employees and they were therefore able to join a union with non-inmate workers at the same meat packing plant. In considering this precedent the Board in Jolivet stated:

It is clear from the foregoing that, for some purposes and in some circumstances, offenders in correctional institutions who participate in work programs could be found to be employees. Evidence of the nature and purpose of the work, the working conditions, and the work’s integration into the employer’s operations, among other factors, would be critical to such a determination. In this case, I do not believe that I have sufficient evidence that would allow such a determination to be made. For example, I have no real evidence of the nature of the work performed by offenders in federal institutions or the integration of that work into the respondent’s operations. On the evidence before me, I could not conclude that offenders are employed rather than participating in work as rehabilitation.

 (paragraph 39)

If more evidence had been introduced, the results in Jolivet could have been different. Also, the Board was not provided other examples of employees who were in an employment relationship, but also benefiting in other ways from it. In particular, there is a very close analogy between inmate workers and student workers, who have also been excluded due to being “students rather than employees.” A number of cases have confirmed that it is possible to be both students and employees, in cases involving interns, post doctoral fellows and co-op students (St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant), [1976] B.C.L.R.B.D. No. 43 at 12 [St. Paul’s], University of Toronto (Governing Council), [2012] O.L.R.D. No. 179 at para 107 [U of T Case], Hotwire Electric-All Inc. [2016] O.L.R.D. No. 896).

Another piece that can bolster the case that inmate workers are employees is the fact that they are so vulnerable. In the SCC decision of Re Rizzo and Rizzo Shoes Ltd [Rizzo] (at paragraph 36), the SCC determined that the status of “employee” provided minimum standards, and that the courts should interpret employee status, “in a broad and generous manner. Any doubt arising from difficulties of language should be resolved in favour of the claimant.”

Inmate workers are extremely vulnerable. Disciplinary infractions at their prison workplace can result in offences on their records, which if accumulated can result in delays in release or other deprivations, which are allowed by section 40 of the Corrections and Conditional Release Act. Inmate workers also make far below minimum wage and have no other possible employer to work for. They also do not have the advantage of access to media to publicize workplace issues. The law should therefore reach over to them and afford them protection of employee status, which is a fundamental requirement to have the right to unionization.


Every worker is somewhere

This default position is a matter of legal necessity. As soon as the threshold of “employee” has been crossed, inmate workers must fall either under either the federal public service or the federal private sector and if totally excluded from both, should be allowed to certify under the respective provincial labour relations regime. They cannot be rendered legally non-existent simply because the federal government failed to list them under either the federal public service or refuses to allow inclusion under the private service, casting them out from both the Public Service Labour Relations Act and the Canada Labour Code. The federal government cannot make unionization impossible. As stated in the SCC decision of Fraser:

Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter.

Total exclusion of the right to unionize, rather than tempering the right, would fail a section 1 Charter analysis, which only allows reasonable limits to Charter rights. Total exclusion is not a reasonable limit, going far beyond the minimal impairment that is allowed.


The Guerin case

In Guerin, the Federal Court had before it an application by inmate workers in CORCAN to contest 30% pay cuts from 2013. The case did not deal with other inmate workers. The inmate workers in Guerin submitted (among other things) that a 30% pay cut was not allowed because they were employees and their pay fell below the minimum standards. The Court considered “employee” status as part of the analysis. In its reasoning, the Court decided that the inmates were not employees because they were in a rehabilitation program, which meant that they could not also be in an employment relationship. The court relied upon two cases, Re Kaszuba and Fenton, but wrongly applied them in my opinion.

In Guerin, the Court reasoned:

[120] In Re Kaszuba and Salvation Army Sheltered Workshop et al., (1983) 41 OR (2d) 316, the Divisional Court of Ontario approved the following passage from the referee’s decision:

If the substance of the relationship is one of rehabilitation, then the mischief which the Employment Standards Act has been designed to prevent is not present and a finding that there is no employment relationship within the meaning of the Employment Standards Act must be made.

This passage was also specifically approved in Fenton v Forensic Psychiatric Services Commission, (1991) 82 DLR (4th) 27 [Fenton] by the British Columbia Court of Appeal.

 [121] In Fenton, the British Columbia Court of Appeal concluded that the work at the Forensic Psychiatric Institute did not constitute employment within the meaning of the Employment Standards Act. Ultimately, the Court closely examined the goal of the Act and reached the conclusion that, if the work is for the purposes of rehabilitation and training, the minimum employment standards set out in these acts for “employees” cannot be applied to work with a different purpose.

What was actually stated in Fenton was far more tempered than suggested in Guerin:

The defendant relies upon Re Kaszuba  v.  Salvation Army Sheltered Workshop et al. (1983), 1983 CanLII 1795 (ON SC), 41 O.R. (2d) 316 saying that the work programs at F.P.I. are therapeutic in nature and not employment as such.  However, Linden J. states very clearly in Kaszuba that the decision is limited to its facts.  He goes on to say further that assisting disabled persons to do useful work will not automatically exempt a sheltered workshop from the operation of the Employment Standards Act, R.S.O. 1980, c. 137, and that there are a number of other relevant factors that should be considered to determine if a rehabilitation relationship exists, such as, (a) the method and amount of payment, (b) profitability of the work, (c) hours of work, (d) various conditions that must be met at work, and (e) the amount and type of counselling.

(page 26)

Neither Re: Kaszuba nor Fenton stand for the position that rehabilitation is mutually exclusive from employment. They state that the overall purpose of the program must be assessed and that an employment relationship may still be found if there are enough indicators of such a relationship despite the rehabilitative aspects. Fenton established the “real economic benefit” test in this light (page 35 of the decision). Very similar reasoning was applied in Amalgamated Meat Cutters and an employment relationship was found in that case, despite the rehabilitative aspects.  

The Court in Guerin also stated that CORCAN was a department under Correctional Service of Canada, therefore the Canada Labour Code did not apply, and that if the inmate workers were employees, they would have to apply under the public service. This would leave them in the same position as they were in Jolivet, off the public service list and ineligible (unless such an argument I have suggested above is successful)



If inmate workers are employees, and are not part of the federal public service, they must be part of the federal private sector, and must have access to the Canada Labour Code labour relations regime. If they are denied both, they must fall under the protection of the labour relations regime in whatever province they are in. They cannot continue to be left wandering in the unconstitutional territory in which s. 2(d) of the Charter is entirely unavailable. The exclusion is even more problematic if the employees are vulnerable and in greater need of protective measures, as is the case.

All roads lead to providing inmate workers the opportunity to rectify their circumstances through application of s 2(d) of the Charter. As put by the majority in Health Services:

[82] The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work.



Amalgamated Meat Cutters & Butcher Workmen v. Guelph Beef Centre Inc, 1977 CanLII 489 (ON LRB) (Amalgamated Meat Cutters)

Canadian Prisoners’ Labour Confederation and Correctional Service Canada, Re 2015 CIRB 779 (Confed)

Fenton v. British Columbia (1991), 56 B.C.L.R. (2d) 170 (B.C.C.A)(Fenton)

Guérin v. Canada (Attorney General), 2018 FC 94 (Guerin)

Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27 (Health Services)

Hotwire Electric-All Inc., [2016] O.L.R.D. No. 896

Jolivet v. Treasury Board (Correctional Service of Canada) 2013 PSLRB 1 (Jolivet)

Re Kaszuba and Salvation Army Sheltered Workshop et al. 41 O.R. (2d) 316

Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 [2015] 1 S.C.R. 3 (Mounted Police)

Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3 (Fraser)

Rizzo & Rizzo Shoes Ltd. (Re), [1998] S.C.J. No. 2 (Rizzo Shoes)

Saskatchewan Federation of Labour v. Saskatchewan, [2015] 1 S.C.R. 245

St. Paul’s Hospital (Re) Between: St. Paul’s Hospital (Hospital), and Professional Association of Residents and Interns (Applicant), [1976] B.C.L.R.B.D. No. 43